Citation Nr: 1418631
Decision Date: 04/28/14 Archive Date: 05/06/14
DOCKET NO. 10-33 950 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUES
1. Entitlement to service connection for bilateral hearing loss.
2. Entitlement to service connection for bilateral tinnitus.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
K. Hubers, Associate Counsel
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INTRODUCTION
The Veteran served on active duty from April 1970 to February 1974 and from February 1991 to May 1991.
This case came before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision rendered by the Regional Office (RO) of the Department of Veterans Affairs (VA) in Waco, Texas.
The Board has reviewed the Veteran's physical claims file and his file on the "Virtual VA" and VBMS systems to insure a total review of the evidence.
The issue of entitlement to service connection for bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).
FINDING OF FACT
The Veteran was exposed to acoustic trauma during active military service, he states he had tinnitus at his separation examination in 1974, and he has subjectively experienced bilateral tinnitus since that time.
CONCLUSION OF LAW
The criteria for service connection for tinnitus have been met. 38 U.S.C.A. § 1110, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.304 (2013).
REASONS AND BASES FOR FINDING AND CONCLUSION
Under 38 U.S.C.A. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122, 128-29 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000).
In deciding the Veteran's claim, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event; or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.
Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).
Further, where the veteran asserts entitlement to service connection for a chronic disease but there is insufficient evidence of a diagnosis in service, service connection may be established under 38 C.F.R. § 3.303(b) by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013). Tinnitus is considered a chronic disease, i.e. an organic disease of the nervous system, and, so, service-connection may be established under 38 C.F.R. § 3.303(b) by demonstrating a continuity of symptomatology since service.
The Veteran asserts that his tinnitus is causally related to acoustic trauma he experienced on active service and that he has continuously experienced the condition since his active service.
Tinnitus is defined as "a noise in the ears such as ringing, buzzing, roaring, or clicking." Smith v. Principi, 17 Vet. App. 168, 170 (2003) (emphasis added) (quoting Dorland's Illustrated Medical Dictionary 1714 (28th ed. 1994)). Accordingly, the Veteran, who is a lay person, is competent to describe his symptoms throughout the relevant period. See generally Barr v. Nicholson, 21 Vet. App. 303 (2007).
The Veteran's service records do indicate he spent time around loud machinery, including large trucks, heavy equipment, and airplanes. In addition, the Veteran's in-service records show complaints of ear trouble. See, e.g., December 1970 Chronological Record of Medical Care (documenting treatment for ear infection; "[Left] ear canal mildly inflamed."); December 1971 Chronological Record of Medical Care (seeking treatment for ear ache). The Board finds in-service event or injury, including acoustic trauma, has been established.
The Veteran has been diagnosed with tinnitus and asserts he currently experiences tinnitus, so a current disability is established. See, e.g., January 2007 Audiology Consult (noting Veteran was "very concerned about the tinnitus and reportedly has difficulty sleeping due to this"). The remaining element for service connection, then, is a nexus between his current disability and the in-service event or injury. As noted, a causal nexus for tinnitus may be established by a continuity of symptomatology. 38 C.F.R. §§ 3.303(b), 3.309(a); Walker, 708 F.3d at 1338-39.
The Veteran has asserted that he had onset of tinnitus by the date of his separation in 1974. See January 2010 Notice of Disagreement (describing a ringing in his ears that interfered with the audiometry tests); see also November 2008 VA Examination (Audiology) (date of onset: "Around 1976"). While the report on the Veteran's exit examination does not contain notations of complaints of tinnitus or ringing in the ears and does not contain explicit indications that the audiometry results were compromised by ringing in the ears, the 1974 separation examination indicates, counterintuitively, an improvement in high frequency hearing in the right ear. Compare April 1970 Report of Medical Examination (indicating, in part, a threshold of 35 decibels at 4000 Hz in the right ear) with January 1974 Report of Medical Examination (indicating, for the right ear, a threshold of 5 decibels at 4000 Hz). The results for the right ear in the January 1974 separation examination are anomalous when compared to both earlier and later examinations, which provides some support for the Veteran's contention that tinnitus interfered with the high frequency test results. Also, other audiology examinations contain results that deviate markedly from both prior and subsequent examinations. See, e.g., September 1981 Report of Medical Examination (recording thresholds of 25 decibels at every frequency in both ears).
The Board finds credible the Veteran's statements regarding subjective tinnitus since 1974 and further finds that the statements are supported, inferentially, by a number of anomalous audiometry results. Therefore, the Board concludes that the Veteran has suffered from bilateral tinnitus since, at least, his separation from active service in 1974.
The evidence is at least in equipoise on this issue, so the Veteran's claim of entitlement to service connection for bilateral tinnitus is granted. See Gilbert, 1 Vet. App. at 53-56.
ORDER
Entitlement to service connection for bilateral tinnitus is granted, subject to controlling regulations governing the payment of monetary awards.
REMAND
As discussed with respect to tinnitus above, the record establishes in-service acoustic trauma as well as in-service ear trouble. Also, the Veteran has a current bilateral hearing disability. See 38 C.F.R. § 3.385; Hensley v. Brown, 5 Vet. App. 155, 159 (1993).
In order to determine whether there is a causal nexus between the current bilateral hearing disability and the Veteran's active service, the RO obtained an opinion from an audiologist. See January 2009 VA Examination Addendum. When VA provides an examination, the examination must be an adequate examination. Barr, 21 Vet. App. at 311. A medical opinion or examination is adequate where it is based upon consideration of the appellant's prior medical history and examinations. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007).
Here, the VA examiner failed to mention any records from after 1982 despite the existence of those records in the claims file and the Veteran's active service in 1991. See November 2008 VA Examination; January 2009 VA Examination Addendum; May 1991 DD214; December 1990 Report of Medical Examination.
Moreover, the VA examiner inaccurately summarized the findings on the service records that are mentioned. Importantly, "the threshold for normal hearing is from 0 to 20db, and higher threshold levels indicate some degree of hearing loss." Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Although the VA examiner indicates otherwise, the Veteran's active service and reserve records do show hearing loss during active service and before 1982. Compare January 2009 VA Examination Addendum (using as the factual basis for her nexus opinions the statement: "the patient's hearing was within normal limits throughout his active duty years") with April 1970 Report of Medical Examination (indicating, in part, a threshold of 35 decibels at 4000 Hz in the right ear) and December 1990 Report of Medical Examination (showing bilateral, high frequency hearing loss); also compare January 2009 VA Examination Addendum ("Periodic annuals screenings for the Reserves, performed as late as 1982, revealed that hearing was within normal limits, bilaterally.") with January 1980 Report of Medical Examination (recording a right ear threshold of 30 db at 4000 Hz) and September 1981 Report of Medical Examination (recording thresholds of 25 decibels at every frequency in both ears).
While the records of the Veteran's hearing acuity show inconsistent results from year to year, it is simply not accurate to say there were no indications of less than normal hearing acuity during the Veteran's active service or at any point prior to 1982. An opinion based on an inaccurate factual basis is inadequate for VA purposes. Stefl, 21 Vet. App. at 123; see also Reonal v. Brown, 5 Vet. App. 458, 461 (1993) ("An opinion based upon an inaccurate factual premise has no probative value.").
Also, Section 3.385 does not preclude an award of service connection for a hearing disability established by post-service audiometric and speech-recognition scores, even when hearing was found to be within normal limits on audiometric and speech-recognition testing at the time of separation from service. Hensley, 5 Vet. App. at 159. And the VA examiner must discuss auditory shifts documented within service records, even if not amounting to a hearing loss disability. Id. The VA examiner appeared to base her nexus opinion exclusively on her erroneous factual conclusion that the Veteran had normal hearing throughout his active service and his hearing loss "occurred subsequent to active service." January 2009 VA Examination Addendum. The VA examiner must provide a more thorough and complete discussion of both the factual and medical basis for any proffered opinion in order for the RO and the Board to be able to properly evaluate the opinion's probative value.
Accordingly, the case is REMANDED for the following action:
1. Schedule the Veteran for a VA examination for the purpose of ascertaining the etiology of the Veteran's current bilateral hearing loss. The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner in conjunction with any examination deemed necessary. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. Any necessary testing should be accomplished.
After reviewing the record and performing any examination of the Veteran deemed necessary, the examiner should address the following:
Is it at least as likely as not (probability of at least 50 percent) that the Veteran's bilateral hearing loss is etiologically related to his active service.
The examiner should assume that the Veteran did experience in-service acoustic trauma. Also, the examiner should note that it has been established for VA purposes that the Veteran's tinnitus first occurred during active service and has been continuous, and worsening, since that time. The examiner should specifically comment on any audiometry results in the service records indicating hearing loss or threshold shifts during the Veteran's active service.
The examiner must provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner must explain why this is so and note what, if any, additional evidence would permit an opinion to be made.
2. After completing the above, and any other development deemed necessary, readjudicate, based on the entirety of the evidence, the Veteran's claims of entitlement to service connection for bilateral hearing loss. If the benefits sought on appeal are not granted to the appellant's satisfaction, he and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).
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MICHELLE L. KANE
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs